National Constitutional Identities in EU Law: A Response to Critics

Despite its much more pronounced and legally bolstered status in the Lisbon Treaty, the concept of national constitutional identity (or some of its use and their potential consequences) have been met with important scholarly criticism. The critiques revolved around a number of aspects of the concept, such as its negative implications for the process of EU legal integration, EU rule of law and equality of the Member States or, more recently, the potential for its abuse by populist or authoritarian governments.
In this paper, I will seek to respond to these critiques and offer some arguments in defense of national constitutional identities and their central role in EU law. In doing so, I will focus on the nature and limits of EU (constitutional?) authority and powers, notably in relation to those of its Member States. More specifically, I will argue that these issues are oftentimes either disregarded or insufficiently addressed by some authors on the other side of the argument.

Battle of the Robes – the road towards the CJEU examining the independence of a constitutional court?

So far, the interplay between constitutional courts in EU member States and the Court of Justice of the European Union has largely been limited to a dialogue centred around the relationship between domestic law and the EU legal system, specifically the question of the supremacy of EU law. From Luxembourg’s point of view, the national constitutional courts were sometimes obstacles in a metaphorical sense, trying to reassert the domestic position vis-à-vis the EU – but at the same time, being valid and constructive participants of the dialogue. The saga of the 19 November 2019 CJEU judgment on the independence of the Polish Supreme Court’s Disciplinary Chamber could well end with just that, as the Polish Constitutional Court is now on track to hand out a ruling that could block the implementation of the CJEU’s decision, and perhaps no longer a valid participant of the dialogue.

What if the RoL principle as set up in the EU Member States’ legal systems belongs not only to their common constitutional tradition but constitute their own constitutional identity?

The RoL principle together with its discontents became one of the fundamental imperatives of EU law. It derives from the common heritage of all EU member states and forms what can be called their common constitutional tradition. This community-based character of the principle has been recognized also in a wider context than the EU.
EU law must recognize not only what is common in the MSs’ legal traditions. Even though it recently has become increasingly challenged, the EU is bound to respect the constitutional identities of the MSs. In my paper, I would like to try to answer whether in any MS (especially out of those with centralized constitutional scrutiny) exist any particular elements of the principle, which demand recognition under art. 4(2) TEU. I will also propose a way of managing such divergences with what can be labelled as “sequential model of adjudication” by the CJEU and domestic courts instead of them engaging in another chapter of the “last word” battle.

In Courts we Trust? The CJEU Judgment of 19 November 2019 (A.K. and Others) and its Systemic Implementation.

On 19 November 2019, the Grand Chamber of the CJEU delivered the preliminary ruling in case A.K. and others regarding the independence of judges of the Supreme Court Disciplinary Chamber, and, indirectly, the National Council of Judiciary. The judgment marks the beginning of another chapter of the rule of law crisis in Poland. It turned out to be much more nuanced and argumentatively sophisticated than the opinion of the AG Tanchev, as the CJEU decided to apply the appearance of the independence test previously introduced in the ECHR case-law. The paper aims to analyse advantages and disadvantages of such an approach, taking into account both the ongoing legal and political struggle over implementation of the CJEU judgment in Poland (Supreme Court’s and Supreme Administrative Court’s rulings, “muzzle law”, disciplinary proceedings against judges) as well as the potential application of the test with regard to the judiciary of other EU Member States.

Together but Separated. The Relation between Romanian Constitutional Court and the Court of Justice of the European Union

In this paper, I shall refer to a particular case and two specific issues. The particular case deals with the Romanian Constitutional Court`s case-law concerning the question of the supremacy of the EU law over the national constitutional and legal order, under art. 148 (2) of the Romanian Constitution.
The first specific issue refers to the legal nature and the binding force of the recommendations stipulated in the reports drafted and issued by the European Commission under the Cooperation and Verification Mechanism, as well as the Romanian Constitutional Court`s decision on the matter.
The second specific issue identifies the causes and effects of some preliminary questions raised by the Romanian High Court to the CJEU, as a consequence of the strongly criticized Constitutional Court`s decisions regarding the lawfulness and unconstitutionality of the appointment procedure of judges for the branches of the High Court.

How difficult distrust is? Analysis of post-Celmer implementation.

The CJEU ruling in LM case (commonly known as Celmer) regarding the right to a fair trial in the context of European Arrest Warrant introduced a two-steps test aimed at verification of threats to judicial independence of issuing judicial authority. In consequence, CJEU introduced the national courts as legitimate actors in the ongoing rule of law debate. The major challenge, however, deals with the fact that courts will be obliged to verify the independence of other domestic courts. The paper discusses rulings (Celmer decided by the Irish High Court and by the Supreme Court; Lis & Ors v Regional Court In Warsaw; The Circuit Court of Warszawa-Praga v Maciejec), in which domestic courts applied Celmer test. The analysis covers how the defendants phrased the relevant arguments; how the court applied the Celmer test – both on the systemic and individual level; what was the outcome of the application.